Presidential Executive Orders

“The executive Power shall be vested in a President of the United States of America . . . [he] shall be Commander in Chief of the Army and Navy . . . [he] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . and he shall nominate, ad by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . have the Power to fill up Vacancies that may happen during the Recess of the Senate . . .he shall take Care that the Laws be faithfully executed . . . ” Art. II, Secs. 1-4.

Please reread that paragraph. It defines the duties and responsibilities of the President. If you can find anywhere in there the words, “executive order(s)” you may be suffering from a penumbra or emanation.

From the very beginning, Presidents have issued Executive Orders. That may be reasonable and logical given the responsibility to see that the “Laws be faithfully executed.” The words would seem to direct the President to restrict his orders to implementing the laws passed by Congress and ascertain that they are being faithfully executed! There isn’t anything said about “legislation” or “legislating” since that would mean the President is beyond his authority and encroaching on the exclusive Congressional responsibility that “All legislative Powers herein granted shall be vested in a Congress of the United States . . .” (Art. I, Sec. 1).

For a few examples of Presidents having by-passed their Constitutional responsibilities and commitments, let's start with Abraham Lincoln. Unilaterally, he set aside a basic, guaranteed right, by denying the “writ of habeas corpus” (Art. I, Sec. 9) to those accused of crimes against the government (Union forces essentially). Accepted and approved at the time, it became obvious in subsequent examination that it was unconstitutional. It should have been rejected on those grounds at the time pronounced.

A second and equal egregious example would be in the Roosevelt's (FDR) order 39066 which served to incarcerate 150,000 Japanese Americans at the beginning of WW II simply because they were of Japanese ancestry or descendants thereof. While the Supreme Court and later Presidents and Congress addressed this abomination, it did not remove the blight on our record of ignoring the “rule of law” vs the rule of men!

And finally, we come to today and the most recent Executive Order that supposedly has the force of law to entitle illegal immigrants to share in the benefits of lawful citizens. This situation is still open at the time of this writing. Nevertheless, if one is a student of the Constitution and its provisions, one has to ask whereby does the President believe he has the authority or power to establish such a ruling? Nowhere in the Constitution does it authorize the President to “legislate”! That, as noted earlier, is the sole prerogative of Congress. It would appear to behoove Congress therefore to step into such situations and deny the individual, department or division of the government an attempt to usurp power they were never granted.

 

Beyond the examples given, even a cursory examination of the many rulings of the EPA demonstrates that this department is regularly issuing orders that restrict the activities of citizens and their businesses yet take on the force of law. This also appears to violate the limited government concept embodied in the Constitution. Those are my views. What are yours? Reach me at constitutionviews@gmail.com               © Copyright 2015 Hillard W. Welch